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Novell to Release Microsoft Patent Agreement Documents

A Novell exec at the Open Source Business Conference says the company will soon share more details of its controversial patent and interoperability agreement with Microsoft.

SAN FRANCISCO—Novell plans to share more details of its controversial patent and interoperability agreements with Microsoft when it files its 10-K annual report, which has been delayed due to a stock option investigation, with the SEC.

"We will be making our SEC filing by the end of [May], and we will publish the Microsoft agreements as attachments along with that, although some of the details will be redacted," Novell spokesperson Bruce Lowry said during a panel discussion titled "Is the Novell-Microsoft Deal Good for Open Source?" at the Open Source Business Conference here May 23.

Lowrys remark was in response to an audience members question following remarks by panelist Allison Randal, an open-source developer and evangelist for OReilly Media, who said she had not seen the full agreement and hoped to be able to do so in the near future.

Panelist Jonathan Corbet, executive editor of LWN.net and an active kernel developer, was the most vocal critic of the patent agreement.

"The covenant not to sue is not a good thing. We all know that the patent industry in the United States is well out of control. There is no way to write any trivial software program without infringing on numerous patents, and you will only know you are infringing when someone tells you," he said.

While Microsoft has been hit by more patent lawsuits than any other company, he said, he considers its sowing of FUD (fear, uncertainty and doubt) and its ongoing attacks on open source with regard to patent infringement to be unacceptable.

"The open-source community writes its own software and does not take code or ideas from others. So when you have a company that says its intellectual property is in the code we have written and that it wants royalty payments for that, it weakens all of our defenses," Corbet said.

Under the deal, Novell pays Microsoft a fee for every seat of its software sold, but what it is actually paying for remains unclear, Corbet said. "But we will overcome this, as we are stronger than that," he said, to much applause.

Randal, however, argued that the deal is irrelevant. "It looks like a standard interoperability agreement, with an agreement not to sue one anothers customers. Microsoft did not gain any additional power over the community with this deal. If they had any power with patents before the deal, they still have it after this deal. Nothing has changed," she said.

Also, if Microsoft decided to "start the patent litigation Armageddon" by suing customers, it would be slapped right down by other companies like Sun and IBM, Randal said.

An additional warranty to give parties safety from attack would be perfectly legal under the GPL, and if this deal was like an additional warranty, Microsoft should work with the Open Innovation Network on a broad patent agreement, she said.

Developer Corbet was enthusiastic about that possibility, saying it would be "a fantastic thing if Microsoft worked with the OIN, as it would also improve the patent regime in this country in Microsofts favor."

Randal also said she believes that "Microsoft suffers from a form of schizophrenia that is common to many large companies, so, overall, you cannot predict how the internal argument over suing open-source customers will play out.

"But I think the process of negotiation internally at Microsoft is moving in the right direction, as they are saying they will not sue customers. I really dont know if Microsoft realizes that it has become a Linux vendor, but it has," she said.

For his part, Sam Ramji, director of platform technology strategy at Microsoft, said the deal was good for open source, as it focused on interoperability, conversations and growth.

"The conversations this has opened up are improving mutual understanding. Microsoft also only grows when its partners are growing, and that is the value chain through which we get paid. So, expanding that ecosystem to include open source helps us with that," Ramji said.

As many as 50 percent of open-source applications are running on Windows today, so the interoperability aspects of the deal are also good for open source, he said.

Justin Steinman, marketing director for Linux and open-platform solutions for Novell, also defended the deal as good for open source as it would drive broad adoption of the software.

Some 40,000 new SUSE Linux subscriptions had been signed as a result of the deal, from customers like Wal-Mart, Nationwide and HSBC, he said.

"We are taking Linux into new places, but our customers also have Windows. They are not going to rip it out and replace it all with Linux. So, if we can improve interoperability between Linux and Windows, that is good for Linux and open source and will drive adoption even further," he said.

Novell does not believe that there are intellectual property infringements inside Linux, Steinman said, and Microsoft could still sue the company over this, just not its customers. "We did this agreement to promote Linux and we are growing our business and that is good for the environment, for the community and for open source," he said.

Microsoft has not yet disclosed which 235 of its patents it says are being violated by free and open-source software, and some in the community prefer it that way.

"As the architect of a virtual machine for a dynamic language, I dont want to know, because if they say it publicly, then we have to start taking legal action," Randal said.

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